Ethics Opinions

RPC 73

April 13, 1990

Editor's Note: This opinion was originally
adopted as RPC 73 (Revised).

Conflicts of Interests Involving Attorneys for
and on Governing Bodies

Opinion clarifies two
lines of authority in prior ethics opinions. Where an attorney serves on a
governing body, such as a county commission, the attorney is disqualified from
representing criminal defendants where a member of the sheriff's department is
a prosecuting witness. The attorney's partners are not disqualified.

Where an attorney advises a governing body, such as a county board
of commissioners, but is not a commissioner herself, and in that capacity
represents the sheriff's department relative to criminal matters, the attorney
may not represent criminal defendants if a member of the sheriff's department
will be a prosecuting witness. In this situation the attorney's partners would
also be disqualified from representing the criminal defendants.

Inquiry:

In RPC 63, decided in April 1989, the Ethics Committee discussed
potential ethical restrictions imposed upon Lawyer L, who serves as a county
commissioner. The Committee held, in part, that Lawyer L should not represent
criminal defendants in cases where the county's law enforcement officers are
prosecuting witnesses, if the commissioners are responsible for hiring, firing,
promoting, or setting the salaries of the officers. CPRs 189 and 233 were cited
in support of this opinion. The Committee held, however, that Lawyer L's
associates would not be so disqualified, citing CPR 252.

CPR 252, decided on September 27, 1979, held that the partners and
associates of an attorney who served on a governing board such as a city
council were not automatically disqualified from representing a party to
litigation, civil or criminal, in which a police officer of the governmental
unit would be a witness, if the governing board is not directly involved in the
hiring, firing or setting of salaries of the police officers of that
governmental unit.

In April 1989, the Ethics Committee approved an ethics advisory
provided to Attorney B, who serves as town attorney and occasionally advises
members of the town police department. The advisory provided that no member of
Attorney B's firm could represent criminal defendants if members of the town
police would be prosecuting witnesses.

In light of CPR 252 and RPC 63, may members of Attorney B's firm
represent criminal defendants in cases in which members of the town police force
will be prosecuting witnesses?

Opinion:

No. CPR 252 and RPC 63 hold that an attorney who has some
potential influence on the salary or employment prospects of a law enforcement
officer ought not be put in the position of cross-examining that officer. The
problem created by this situation is the threat that the law enforcement
officer might not feel free to testify truthfully and fully in the face of such
an opponent. Presumably, the lawyer's partners and associates, who are not
members of the governing board, would have no influence on the law enforcement
officer's salary or employment and thus, the disqualification need not extend
to them.

The decision rendered in April 1989 to Attorney B and his firm
addresses a different factual situation and a different ethical problem. In the
problem addressed in the advisory, Attorney B is not a member of a governing
board with financial power over law enforcement officers, but is the attorney
for a governing body. Under the facts presented, Attorney B advises the police
department and, in effect, represents the policemen. If Attorney B undertakes
to represent criminal defendants arrested by town police, he is, in effect,
simultaneously representing clients with adverse interests. It is presumed that
the conflict created by this simultaneous representation is so fundamental that
it cannot be waived by consent of the clients. Further, this disqualification
is extended by Rule 5.11 to the other members of the attorney's firm.
Therefore, the attorney's associates may not represent criminal defendants who
were arrested by members of the police force.

If, however, Attorney B represents a governing body but does not
represent the police department in criminal matters, neither he nor his
partners would be disqualified from representing criminal defendants in cases
where police officers are prosecuting witnesses.